United States v. McKee, 3:15–cr–007–RCJ–VPC

• Citation: 157 F.Supp.3d 879
• Decision Date: 26 January 2016
• Docket Number: 3:15–cr–007–RCJ–VPC
• Parties: United States of America, Plaintiff, v. Nelson Ray McKee, Defendant.
• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada

157 F.Supp.3d 879

United States of America, Plaintiff,

v.Nelson Ray McKee, Defendant.

3:15–cr–007–RCJ–VPC

United States District Court, D. Nevada.

Signed January 26, 2016

Shannon M. Bryant, U.S. Attorneys Office, Reno, NV, for Plaintiff.

ORDER

ROBERT C. JONES

, United States District Judge

A grand jury has indicted Defendant Nelson Ray McKee, an Indian, on one count of Murder Within Indian Country, 18 U.S.C. §§ 1111

, 1151, and 1153. Defendant has made eight motions in preparation for trial (ECF Nos. 15–22). For the reasons stated below, the Court grants the motions in part and denies the motions in part.

I. FACTS AND PROCEDURAL HISTORY

On December 31, 2014, Jason Manard, an officer for the Bureau of Indian Affairs, accompanied by Casey Negus and Kyle Negus, deputies for the Humboldt County Sheriff's Office, responded to an emergency call on the Fort McDermitt Indian Reservation. (Narrative, 4, 6, ECF No. 41-1; Incident Report, 3, ECF No. 41-2). The caller told the dispatcher a woman was pounding on the door and appeared to have been stabbed in the chest. (Id. ) When the officers arrived at the scene, they found Cheryl Jackson-McKee on the floor of the entry way “flailing about weakly and moaning.” (Incident Report, 3). “She had blood on her left cheek” and “a wound

in her upper left chest that was bleeding quite a bit.” (Id. ) The officers decided to find Jackson-McKee's husband, Defendant Nelson McKee, at the McKee residence located about eighty yards from the scene. (Narrative, 4, 6; Incident Report, 3). As the officers walked toward the house, they noticed fresh footprints in the snow leading from the McKee residence to the scene. (Id. ). The footprints passed through an open gate separating the two residences, and the officers observed drops of blood on the snow by the gate. (Id. ). When they approached the door of Defendant's home, Officer Manard noticed drops of blood at the base of the door's exterior. (Incident Report, 3).

The officers knocked on the door twice, and Defendant opened the door about forty-five seconds after the first knock. (Body Camera Video One of Deputy Kyle Negus (“Video”), DVD Bates No. USAO 00896, FILE0078, 22:21:21–22:22:06, ECF Nos. 40, 42). Officer Manard asked, “What's going on?” and Defendant replied, “Nothing.” (Id. at 22:22:08). Officer Manard asked Defendant twice, “Why is Cheryl bleeding?” and said to him, “Cheryl's over there bleeding right now; we're trying to figure out why—did she fall over again or did something happen?” (Id. at 22:22:10–24). Amidst these questions, Deputy Kyle Negus asked, “Can we come in the house?” (Id. at 22:22:15). According to Officer Manard, Defendant “invited us inside.” (Incident Report, 3). Deputy Kyle Negus's body camera video shows Defendant moved out of the doorway, and the officers entered the house. (Video, 22:22:30). Defendant then sat at a table where the officers observed a large bottle of whiskey and two knives, one of which appeared to be bent and the other appeared to have blood on it. (Incident Report, 3). The officers moved the knives from the reach of Defendant, ordered him to stand up, handcuffed him because he was balling up his fists, and had him sit down. (Id. at 3–4).

While Defendant was detained, Officer Manard asked many questions of Defendant and made statements to him, such as the following:

• “Why is there a bloody knife on your table?”

• “Nelson, what the hell happened?”

• “Cheryl's over there bleedin'; I've got a knife with blood all over it; I've got you sitting next to it.”

• “Nelson, I need you to talk to me right now; what the fuck happened, dude?”

• “Nelson, seriously, what happened?”

• “Nelson, you're not under arrest right now, I'm trying to figure out what the fuck happened.”

• “Nothing? Something happened, Nelson, she's over there bleeding.”

(Video, 22:23:53–22:25:20). While the deputies searched the house for other occupants and found none, (Id. at 22:24:50–22:26:30), Officer Manard continued his questions and statements, including the following:

• “Why the fuck is she bleeding?”

• “You two didn't get in an argument?”

• “Did you cut her or did she cut herself?”

• “Did you watch her do it?”

(Id. at 22:26:33–22:30:00). During that exchange, Deputy Casey Negus was examining and reading papers on a table in the room. (Id. at 22:27:15–22:28:40).

The officers then placed Defendant under arrest for unlawful possession of alcohol. (Id. at 22:29:15–22:30:10). Because they had observed blood on his socks, they removed them and placed them in an evidence bag. (Narrative, 4; Incident Report, 4). As the officers prepared to transport Defendant to jail, Defendant stated, “[Jason Manard] has tried me in federal court two times ... probably will be his third time he tries me,” and Deputy Kyle Negus replied, “What would he try and try you for this time? Why would he take you to court this time?” (Video, 22:38:00–22:39:20).

The next day, January 1, 2015, FBI agents obtained a search warrant and seized evidence from Defendant's home. (Mot. to Suppress, 2, ECF No. 22). Agents also interviewed Defendant while he was in jail. At 5:57 p.m., Defendant invoked his right to have an attorney present, and the interviewer ceased the interrogation. (Tr. 2–3, ECF No. 39-3). However, Defendant “continued to ask questions about the circumstances of his arrest and [was] told that the interviewing Agents could not respond.” (Doc, 1, ECF No. 39-4). At 6:18 p.m., Defendant stated that he wanted to speak with the agents and confirmed that the agents had not asked to continue the conversation after Defendant had asked for an attorney. (Tr. 2, ECF No. 39-5). Defendant said he had changed his mind. (Id. ) The officers then re-read Defendant's Miranda

rights to him, and Defendant initialed and signed a waiver form. (Id. at 3; Waiver Form, ECF No. 39-5).

Defendant has made the following eight motions: (1) motion for notice of intent to introduce evidence under FRE 404(b)

; (2) a Henthorn motion; (3) motion to strike surplusage from the indictment; (4) motion to use the Elko Division Master Jury Wheel; (5) motion to permit attorneys to ask further questions of jurors under Rule 24(a); (6) motion to use a case-specific jury questionnaire; (7) motion to suppress statements for Fifth Amendment violations; (8) motions to suppress evidence for Fourth Amendment violations.

II. MOTION FOR NOTICE OF INTENT TO INTRODUCE EVIDENCE UNDER FRE 404(b)

Defendant asks the Court to order the Government to provide thirty days' notice of any evidence it intends to introduce at trial under Rule 404(b)

(ECF No. 15). At a defendant's request, Rule 404(b) requires a prosecutor to give “reasonable notice” of its intent to offer evidence of “a crime, wrong, or other act” for a permissible use, “such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b). The Government does not oppose the motion, and the Court finds thirty days to be reasonable. The Court grants the motion and orders the Government to provide thirty days' notice of any evidence it intends to introduce at trial under Rule 404(b). In addition, the Government shall provide prompt notice if it discovers any such evidence within thirty days of trial.

III. HENTHORN MOTION

Defendant moves the Court to order the Government to inspect and produce the personnel files of all federal agents and officers it intends to call as witnesses at trial (ECF No. 16). When a defendant requests access to the personnel files of testifying officers for the purposes of identifying exculpatory information, i.e., impeachment information, the government must examine the personnel files itself and disclose any material information that is favorable to the defendant. United States v. Henthorn , 931 F.2d 29, 30–31 (9th Cir.1991)

; see also

Giglio v. United States , 405 U.S. 150, 154–55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) ; Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). If the prosecution is uncertain as to whether the information is material, “it may submit the information to the trial court for an in camera inspection and evaluation.” Henthorn , 931 F.2d at 31 (quoting United States v. Cadet , 727 F.2d 1453, 1467–68 (9th Cir.1984) ). A defendant has no burden to make an initial showing of materiality; the mere demand to produce the files triggers the government's duty to examine the files. Id. However, the attorney assigned to a case need not personally review the files. United States v. Jennings , 960 F.2d 1488, 1491–92 & n. 3 (9th Cir.1992). Following its examination, the prosecution need not furnish the files “to the defendant or the court unless they contain information that is or may be material to the defendant's case.” Henthorn , 931 F.2d at 31.

Contrary to Henthorn

, Defendant asks the Court to order the Government to produce the files of all agents and officers the Government intends to call as witnesses at trial. Henthorn requires the prosecution to furnish only files it believes “contain information that is or may be material to the defendant's case.” Id. Thus, the Court grants the motion inasmuch as it requires the Government to review personnel files and furnish those it believes may contain material information, an obligation with which the Government has indicated it intends to comply. (See Resp., 3, ECF No. 37). The Court denies the motion inasmuch as Defendant's request exceeds the Government's obligations as identified in Henthorn

.

IV. MOTION TO STRIKE SURPLUSAGE FROM INDICTMENT

Defendant moves to strike as surplusage the words “willfully and” from the indictment (ECF No. 17). Under federal rules, “[u]pon the defendant's motion, the court may strike surplusage from the indictment or information.” Fed. R. Crim. P. 7(d)

. The purpose of this rule is “to protect a defendant against prejudicial or inflammatory allegations that are neither relevant nor material to the charges.” United States v. Laurienti , 611 F.3d 530, 546–47 (9th...